Still a question mark

Supreme Court has spoken of prospective parents, but remains silent on adoptees.

Under the Hindu Adoption and Maintenance Act, 1956, only a Hindu can adopt a child and only a Hindu child can be adopted. (IE)

Tahir Mehmood

Supreme Court has spoken of prospective parents, but remains silent on adoptees.

Nine years ago, social activist Shabnam Hashmi had filed a PIL in the Supreme Court, seeking a direction to the Central government to enact a general law of adoption that would be applicable to all. After a long delay, the court disposed the matter on February 19, 2014. No such direction was issued, but the court emphasised that the provisions relating to adoption under the Juvenile Justice (Care and Protection of Children) Act, 2000, can be availed by any person, notwithstanding the position of adoption under a personal law.

There is no general adoption law in India. Successive governments have been reluctant to enact such a law in view of the opposition from certain sections of society on religious grounds. The enactment of a general adoption law has been vehemently opposed by Muslims and Parsis. While the latters’ religion prohibits the assimilation of an “outsider” into a Zoroastrian family, the former believe that their religious law totally prohibits adoption. This belief has not been dislodged in any of those Muslim countries that have reformed and codified Islamic family law — the only two exceptions are Turkey and Tunisia, where adoption has been permitted by law, subject to certain restrictions meant to accommodate clear provisions from the Quran. I have always held that opposition to a secular adoption law is irrational because such a law would only be an enabling legislation. It would not force anyone to adopt against the dictates of their religion. In the early 1970s, when a secular adoption bill was being considered, I had publicly favoured it and also registered my views with the parliamentary select committee working on the bill. This had met stiff resistance from Muslim religious circles.

Under the Hindu Adoption and Maintenance Act, 1956, which is the only law on the subject in the country, only a Hindu can adopt a child and only a Hindu child can be adopted. In the absence of any general law, foreigners wishing to adopt an Indian child have been taking the circuitous route of securing guardianship of the proposed adoptee under the Guardians and Wards Act, 1890, taking her to their home country, and procuring adoption orders from courts there under the local law. To make things easier in this context, the Supreme Court issued a set of guidelines for inter-country adoption, with a direction that it be followed strictly until Parliament enacts a proper law on the subject.

The United Nations promulgated a Convention on the Rights of the Child in 1989. India ratified it in 1992, and in response to its demands, enacted the Juvenile Justice (Care and Protection of Children) Act, 2000, which provides a machinery to ensure the welfare of children “in need of care and protection” or “in conflict with law”. The act made a brief provision for adoption under Section 41, which was amended in 2006. Under its present version, a child who is “orphan, abandoned or surrendered” can be given in adoption by a court after it is satisfied that investigations have been carried out. This act is a general law that does not exclude any section of persons from its ambit.

In the Shabnam Hashmi case, the Supreme Court has so emphasised the enabling nature of the provision: “The act does not mandate any compulsive action by any prospective parent leaving such person with the liberty of accessing the provisions of the act, if he so desires. Such a person is always free to adopt or choose not to do so and, instead, follow what he comprehends to be the dictates of the personal law applicable to him.”

Very true indeed, but an important aspect of the issue has not been addressed by the court. The act requires the statutory child welfare committees set up under its provisions to certify in every case that the child proposed to be adopted is “legally free to be adopted”. If it is true that Islamic law prohibits adoption, then a Muslim child, as long as she is governed by Islamic law, will not be “legally free to be adopted”. Intervening in the case, the All India Muslim Personal Law Board (AIMPLB) wanted the court to issue appropriate directions to the child welfare committees “to keep in mind and follow the principles of Islamic law before declaring a Muslim child available for adoption” under the act. The court’s judgment refers to this plea of the AIMPLB but totally ignores it.

Since the court had permitted the board to make an intervention, its response to the plea should have been made clear.

What the court has said about the prospective adoptive parents in the context of Muslim law is unassailable but its silence about the proposed adoptees governed by that law is, to say the least, inexplicable.

The writer is former chairperson of the National Commission for Minorities.